616 F.

2d 734

Mary KICKLIGHTER, Plaintiff-Appellant,

v.
NAILS BY JANNEE, INC., Defendant-Appellee.
Mary KICKLIGHTER, Plaintiff,
v.
NAILS BY JANNEE, INC., Defendant and Third-Party
Plaintiff-Appellee,
v.
KAY-SEE DENTAL MANUFACTURING CO., Third-Party
Defendant-Appellant.
Nos. 77-3226, 78-1145.

United States Court of Appeals,

Fifth Circuit.
April 30, 1980.
Rehearing Denied July 3, 1980.

Ronald F. Adams, Brunswick, Ga., for Kicklighter in No. 77-3226.

John W. Davis, Brunswick, Ga., for Kicklighter in both cases.
Perry Brannen, Jr., Savannah, Ga., for Rohm & Haas Co.
Edward T. Brennan, Savannah, Ga., for E. I. duPont de Nemours & Co.
J. Thomas Whelchel, Brunswick, Ga., for third-party defendant-appellant.
Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Wallace E. Harrell,
Brunswick, Ga., for Nails by Jannee, Inc.
Appeals from the United States District Court for the Southern District of
Georgia.
Before AINSWORTH, VANCE and ANDERSON, Circuit Judges.
R. LANIER ANDERSON, III, Circuit Judge:

In this diversity case, Appellant Mary Kicklighter sued Nails by Jannee, Inc.
for compensatory and punitive damages for injuries suffered as a result of her
use of a product supplied to her by defendant, Nails by Jannee, Inc. The product
is a fingernail restoration kit containing a bottle of powder and a bottle of liquid
which are combined and brushed onto the natural fingernail to build up an
artificial nail. The powder component is the chemical, methyl methacrylate,
and the liquid component is another form of the same chemical. In
combination, these components form a polymer, a hard substance which creates
the artificial nail.

Plaintiff Kicklighter alleged that after she used the product for four to six
weeks, she experienced coughing, bronchial spasm and headaches. She sought
medical attention and was later hospitalized and found to require treatment for
diabetes. In addition to these symptoms, Kicklighter complained of continued
difficulty breathing and a general deterioration of her health, among other
things. She attributes these injuries to the fumes and strong odor of methyl
methacrylate. Kicklighter's complaint is predicated on theories of negligence,
strict liability and breach of warranty.

In a third-party complaint, Nails by Jannee, Inc. sued Kay-See Dental

Manufacturing Company, which supplied the bulk form of the product to Nails
by Jannee, for indemnification. The third-party plaintiff's case is grounded in
negligence and the theories of breach of express and implied warranty.

The main case (plaintiff versus defendant) and the third-party action (defendant
versus third-party defendant) were tried together. The jury found Nails by
Jannee, Inc. liable to plaintiff Kicklighter for $25,000 compensatory damages
and $60,000 punitive damages and found further that Kay-See was liable over
to Nails by Jannee, Inc. on the compensatory damage claim of $25,000. The
motion by Nails by Jannee, Inc. for a judgment notwithstanding the verdict with
respect to the award of punitive damages was granted by the district court. The
trial court denied Kay-See's motion for judgment notwithstanding the verdict or
in the alternative for a new trial. Kicklighter now appeals from the judgment
notwithstanding the verdict for Nails by Jannee, Inc. on the issue of punitive
damages, and Kay-See appeals from the denial of its motion for judgment
notwithstanding the verdict or for new trial. Nails by Jannee does not appeal
the finding that it was liable to Mary Kicklighter for compensatory damages.
We treat these appeals seriatim.

KICKLIGHTER'S APPEAL
5

The only issue raised by Mary Kicklighter on appeal is whether the district

court erred when it granted the motion by defendant Nails by Jannee, Inc. for
judgment notwithstanding the verdict under Rule 50, Fed.R.Civ.P. on the
punitive damages aspect of the verdict.
6

Under Georgia law, the substantive law applicable in this diversity case,
imposition of punitive damages is authorized only when there is "evidence of
wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want
of care which would raise the presumption of a conscious indifference to
consequences. The latter expression relates to an intentional disregard of the
rights of another, knowingly or wilfully disregarding such rights." Gilman
Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975). Punitive damages
cannot be awarded for mere negligence. Molton, et al. v. Commercial Credit
Corp., 127 Ga.App. 390, 193 S.E.2d 629 (1972); Louisville and Nashville
Railroad Co. v. Young, 112 Ga.App. 608, 145 S.E.2d 700 (1965).

Determination of whether punitive damages are authorized is a jury question.

Walk v. Carter, 110 Ga.App. 273, 138 S.E.2d 390 (1964). However, in this
circuit, in diversity cases, federal courts apply a federal rather than a state test
for the sufficiency of the evidence to create a jury question. Boeing Co. v.
Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc) at 368. Under Boeing, in
order to create a jury question, there must be a conflict in substantial evidence.
The trial judge should grant a motion for judgment notwithstanding the verdict
only when he believes that reasonable men could not arrive at a contrary
verdict.

The district court concluded in this case, "that the only reasonable conclusion
that the jury could have reached was that the defendant (Nails by Jannee, Inc.)
did not act recklessly or with that entire want of care which would raise the
presumption of a conscious indifference to the consequences of its actions."
The court noted further that there was no contention that Nails by Jannee acted
intentionally or willfully in causing Kicklighter's injuries. There was no
evidence from which the jury could have inferred that Nails by Jannee knew or
suspected that the product sold to Kicklighter was potentially dangerous, the
district court found.

We hold that the district court correctly applied the Boeing v. Shipman standard
of review in ruling on the motion. Our review of the record below convinces us
that the district court did not err when it found that the only reasonable
conclusion the jury could have reached was that the defendant did not act "with
that entire want of care which would raise the presumption of a conscious
indifference to the consequences of its actions." The district court's grant of the
motion for judgment notwithstanding the verdict with respect to punitive

damages is, therefore, affirmed.

KAY-SEE'S APPEAL
10

Third-party defendant Kay-See has alleged nine points of error in its appeal.1
Three of the errors alleged relate to the third-party action, Nails by Jannee, Inc.
versus Kay-See Dental Manufacturing Co. The remaining six relate to the main
action, i. e. plaintiff Kicklighter versus defendant Nails by Jannee, Inc.

11

We have reviewed each of the three allegations of error in the third-party action
concerning Kay-See's liability over to Nails by Jannee, Inc. Because we find no
merit in these assertions of error, we affirm so much of the judgment of the
district court which holds Kay-See Dental Manufacturing Co. liable over to
Nails by Jannee, Inc. for any liability Nails is found to have to plaintiff
Kicklighter.

12

Upon review of the six errors alleged in the main case, we conclude that the
only contention which merits detailed analysis is that the trial court erred in
giving the res ipsa loquitur charge. We find that the trial court did commit error
in giving that charge and accordingly reverse the judgment of liability for
compensatory damages in favor of plaintiff Kicklighter and remand for a new
trial.

13

Under Georgia law, the applicable substantive law in this diversity case, res
ipsa loquitur is a rule of evidence which allows the jury to infer, from
circumstantial evidence, negligence on the part of the defendant. Parker v.
Dailey, 226 Ga. 643, 645, 177 S.E.2d 44 (1970); Macon Coca-Cola Co. v.
Chancey, 101 Ga.App. 166, 168-169, 112 S.E.2d 811, aff'd, 216 Ga. 61, 114
S.E.2d 517 (1960). The substantive law of Georgia determines which elements
are required for the application of the doctrine of res ipsa loquitur in this case.
Lairsey v. Advance Abrasives Co., 528 F.2d 991 (5th Cir. 1976); Simmons v.
City Stores Company, 412 F.2d 897 (5th Cir. 1969); Louisiana & Arkansas
Railway Co. v. Fireman's Fund Insurance Co., 380 F.2d 541 (5th Cir. 1967).
Under Georgia law, the doctrine of res ipsa loquitur applies when the following
elements are present: (1) the injury must be of a kind which ordinarily does not
occur in the absence of someone's negligence; (2) the injury must be caused by
an agency or instrumentality within the exclusive control of the defendant; (3)
the injury must not have been due to any voluntary action or contribution on the
part of the plaintiff. Richmond Hospital Authority v. Haynes, 121 Ga.App. 537,
174 S.E.2d 364 (1970); Macon Coca-Cola Co. v. Chancey, supra. An additional
requirement for the applicability of the doctrine under Georgia law is the
absence of an intervening cause which could produce the alleged injury. Floyd

v. Swift & Co., 59 Ga.App. 154, 200 S.E. 531 (1938).

14

Third-party defendant-appellant Kay-See asserts that the district court's res ipsa
loquitur charge2 was erroneously given because plaintiff Kicklighter failed to
show the presence of the requisite elements. The question before us is whether
the jury should have been given the opportunity to draw the inference which
the res ipsa loquitur doctrine permits, i. e., whether there was sufficient
evidence to warrant the charge.3

15

While state substantive law of res ipsa loquitur applies in a diversity case, this
court has indicated that it will apply federal law to test the sufficiency of the
evidence to justify the res ipsa loquitur charge. Helene Curtis v. Pruitt, 385
F.2d 841 (5th Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d
652 (1968). Helene Curtis teaches that a trial judge can appropriately give the
res ipsa loquitur charge if the evidence affords a rational basis upon which the
jury can conclude that the elements of the doctrine required under state
substantive law are present. Thus the trial court errs in giving the charge when
there is no rational basis in the evidence from which the jury could find the
necessary prerequisite elements of the doctrine. See Cater v. Gordon Transport
Inc., 390 F.2d 44 (5th Cir.), cert. denied, 392 U.S. 927, 88 S.Ct. 2285, 20
L.Ed.2d 1386 (1968). Upon careful review of the evidence in this case, we
conclude that the evidence did not provide a rational basis from which the jury
could have found the presence of the necessary res ipsa loquitur preconditions.

16

The doctrine of res ipsa loquitur is typically used to supply a deficiency of

proof as to negligence. General Motors Corp. v. Muncy, 367 F.2d 493 (5th Cir.
1966), cert. denied, 386 U.S. 1037, 87 S.Ct. 1476, 18 L.Ed.2d 600 (1967). It
operates to permit an inference of negligence when the evidence does not
directly establish how the injury occurred. The possible theories of negligence
with respect to which the res ipsa loquitur charge might be appropriate here are
(1) that the defendant was negligent in failing to warn of the dangers involved
in the use of the product,4 or (2) that the defendant was negligent in selling a
product which was unreasonably dangerous for its intended use, i. e., that there
was a defect in the design of the product.5 Unless we can find that there was a
rational basis from which the jury could have found the requisite elements of
the doctrine to be present, it was error for the trial court to give the res ipsa
instruction and thereby give the jury the opportunity to infer that defendant
breached its duty of care, either with respect to warnings or design.

17

Turning to the first of the elements of the res ipsa loquitur doctrine, we find
that there is no rational basis for a jury determination that the injury to
Kicklighter was of a kind which ordinarily does not occur in the absence of

someone's negligence. Here, that negligence would be the failure to warn of the
dangers from the use of the product, or the selling of a product which was
unreasonably dangerous for its intended use, i. e., defective in design. To
determine whether an event is of the kind which does not occur unless someone
has been negligent, we look to common human experience. Berry v. American
Cyanamid Co., 341 F.2d 14 (6th Cir. 1965); Turtenwald v. Aetna Casualty &
Surety Co., 55 Wis. 659, 201 N.W.2d 1, 5 (1972); Restatement (Second) of
Torts 328D, Comment c (1965).
18

We do not believe that common experience suggests that plaintiff's injury,

viewed in light of her contemporaneous use of the product at issue, is of a kind
which ordinarily would not occur in the absence of someone's negligence.
Kicklighter's use of the product and her injury do not, standing alone, "point an
accusing finger at the manufacturer (of the product)." Helene Curtis v. Pruitt,
supra, at 854. The fact that she used the product and was subsequently injured
does not provide a rational basis for inferring negligence, i. e., for inferring that
use of the product involved dangers of which the manufacturer was under a
duty to give warning, or that the product was unreasonably dangerous and
therefore defective. Even if we assume that plaintiff Kicklighter's injury was
caused by the product, this fact is not sufficient, by itself, to infer a danger
involved in the use of the product (necessary to establish a duty to warn) or to
infer a risk so dangerous that a reasonable man would not sell the product
(necessary to establish a design defect). This single fact does not "point an
accusing finger."

19

The only evidence bearing on a common experience with the use of the product
prior to Kicklighter's injury related to its use in the dental prosthesis industry for
40 years and a brief period of use for fingernail restoration purposes
approximately 20 years ago. None of this evidence suggested that the use of the
product was associated with injury such as that suffered by the plaintiff. There
was, in addition, testimony that HEW had, by letter sometime in late 1975,
notified the third-party defendant that it did not want methyl methacrylate sold
in the cosmetic field. However, this order removing methyl methacrylate from
the market for cosmetic purposes came well over a year after Kicklighter's
injury and there was no evidence to show the reason for the order. Thus, at the
time of the plaintiff's injury, there was no common experience in the use of the
product which would suggest that her injuries from using the product would not
have occurred absent negligence on the part of someone.

20

There was no rational basis, therefore, for the jury to conclude that
Kicklighter's injuries were of a type which would not ordinarily occur in the
absence of negligence on the part of someone. Accordingly, plaintiff has failed

to make the necessary showing of the first of the required preconditions, and
we conclude that the trial court erred in giving the res ipsa loquitur charge. We
need not consider whether there was a rational basis for finding that the other
elements of the doctrine were present in this case.
REVERSIBLE ERROR
21

The error in giving the res ipsa loquitur charge requires reversal and remand
for a new trial. Although plaintiff asserted several theories of recovery, and
although the res ipsa loquitur charge would relate to only one, the jury returned
a general verdict in favor of plaintiff. We do not have the benefit of answers to
interrogatories accompanying the verdict, and we, therefore, do not know on
what basis the jury reached its verdict. Vandercook & Son, Inc. v. Thorpe, 344
F.2d 930 (5th Cir. 1965). In this situation, "we are required to assume that the
jury followed only the erroneous instruction . . .." Mixon v. Atlantic Coast Line
R. R., 370 F.2d 852 (5th Cir. 1966) (J. Brown concurring).

EFFECT OF REVERSAL
22

To determine the scope and effect of our decision to reverse, it is appropriate to

review the status of this case on appeal. Plaintiff Kicklighter obtained a verdict
and judgment in the main case against defendant Nails by Jannee, Inc.
Defendant, also the third-party plaintiff, obtained a verdict and judgment in the
third-party action against third-party defendant Kay-See. Defendant did not
appeal. Third-party defendant did appeal. Since we have found that third-party
defendant did perfect its appeal, it obviously is entitled to benefit from the relief
granted on appeal. The question before us is whether defendant, who did not
file a notice of appeal, shall also benefit. Because the third-party defendant's
liability is derivative of defendant's liability, and because the reversal of the
judgment against the third-party defendant is based solely on an error in the
main case6 , i. e., plaintiff's case against defendant, we hold that third-party
defendant has appealed and asserted this error not only on its own behalf but
also on behalf of defendant. Thus the third-party defendant's appeal operates, in
this limited circumstance, as an appeal of the judgment of defendant as well as
the judgment of third-party defendant.7

23

We have found no controlling authority to guide us.8 In an analogous situation,

both the Second Circuit9 and the Fourth Circuit10 have permitted an appeal by
one defendant to operate for the benefit of another defendant. In the Second
Circuit case, In re Barnett, the trustee in bankruptcy challenged an assignment
by the bankrupt to her mother. The referee sustained the assignment, but the
district court reversed, rejecting the mother's claim, upholding the trustee's

claim, and directing the bankrupt to execute an instrument assigning the

property to the trustee. The bankrupt appealed, but the mother did not. The
Second Circuit reversed the district court on the ground that the assignment to
the mother was valid. The court extended its relief not only to the bankrupt,
who was relieved from the district court's order to execute a transfer to the
trustee, but also to the mother, who had not appealed. The mother's claim to the
property was sustained as against the trustee. The court stated: "Several courts
have recognized that, where reversal of a judgment wipes out all basis for
recovery against a non-appealing, as well as against an appealing, defendant,
the reversal may operate to the benefit of both."11
24

On the other hand, the District of Columbia Circuit, in Whitehead v. American

Security and Trust Co., 285 F.2d 282 (1960), adopted a more rigid approach.
There the plaintiff sued the defendant bank, which in turn impleaded the thirdparty defendant. The district court entered judgment for the defendant and the
third-party defendant, whose liability was derivative. Only the plaintiff took a
timely appeal. The court reversed the judgment below, holding defendant liable
to plaintiff. The court rejected defendant's argument that plaintiff's appeal
brought the entire case up for review. Because defendant had not appealed, the
court left intact the judgment for the third-party defendant, and thus left the
defendant exposed and liable to plaintiff with no reimbursement from the thirdparty defendant.12 Whitehead and a similar, unpublished Second Circuit
decision, United States v. Bertman, No. 28784 (2d Cir., January 31, 1964), are
criticized by Professor Moore:13 "(t)he harsh results reached in Whitehead and
Bertman seem unnecessary." We express no opinion on the soundness of the
cited cases. They are not controlling, and in any event are distinguishable. The
plaintiff in Whitehead could not be said to have appealed on behalf of the
defendant, as we have held in the instant case that the third-party defendant
Kay-See has appealed on behalf of defendant Nails by Jannee, Inc.

25

The instant case more readily lends itself to broadening the scope of appeal
than either Barnett, supra or Maryland Casualty, supra.14 In the two cited cases,
where an appeal by one party was expanded to benefit a non-appealing party,
the two parties occupied positions in the litigation which were parallel but
separate and independent, related only in that the same issue was determinative
of the litigation for each. In Barnett, the bankrupt and her mother were both
respondents to the trustee's petition challenging the assignment. In Maryland
Casualty, the two parties were materialmen, some of whom appealed and some
of whom did not. However, in the instant case, the third-party defendant, KaySee, is in a derivative position with respect to defendant, Nails by Jannee, Inc.
There is an identity of interest in that third-party defendant's liability is, i. e.,
derives from, the liability of defendant. Third-party defendant occupies the

defendant's shoes.15 Rule 14, Fed.R.Civ.P., gives third-party defendant

authority to assert any defense which defendant could have asserted. Common
sense and justice suggest that such defenses may be asserted by third-party
defendant on behalf of itself and defendant.16
26

A contrary result, i. e., a holding that the judgment against third-party

defendant should be reversed but that defendant's judgment should be left intact
because defendant did not appeal, would be unjust17 for several reasons: First, it
would violate common sense and common notions of justice and the
appearance of justice to limit relief on appeal to the third-party defendant. The
appellate process has been fully invoked and utilized. Error has been found in
the judgments against both the defendant and the third-party defendant.
Second, as mentioned above, we affirm defendant's judgment in the third-party
action holding the third-party defendant liable over to defendant. Should we
now reverse the judgment against third-party defendant, but leave intact the
judgment against defendant because he did not appeal, we would run counter to
our previous holding that third-party defendant is liable over to defendant. The
anomalous result would be that defendant is ultimately liable, and third-party
defendant is not, even though there is an error-free judgment that third-party
defendant should be responsible for whatever liability defendant incurs. Third,
third-party defendant would probably get off scot-free, although the error
which third-party defendant has successfully asserted would ordinarily entitle it
only to a new trial. This is true because it would hardly make sense to require
plaintiff to prosecute a new trial, if we should hold that plaintiff has a final
judgment against defendant because defendant took no appeal. Fourth, plaintiff
would keep and satisfy its judgment against defendant, even though plaintiff's
judgment contains the latent error, and plaintiff would ordinarily be entitled,
not to a final judgment, but only to a new trial.

CONCLUSION
27

Accordingly, we reverse both the judgment against third-party defendant, KaySee, and the judgment against defendant, Nails by Jannee, Inc., and remand for
a new trial. Further, since we found no error in that portion of the third-party
action judgment against third-party defendant which fixes its liability over to
the defendant for any liability which defendant might have to plaintiff, we
affirm defendant's judgment in the third-party action against third-party
defendant to that extent.

28

With respect to Kicklighter's appeal on punitive damages, we affirm the

judgment notwithstanding the verdict in favor of the defendant.

29

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Third-party plaintiff-appellee, Nails by Jannee, Inc., raises two additional issues

in this portion of the appeal. We can dispose of them briefly. Nails argues, first,
that third-party defendant Kay-See Dental Manufacturing Co. is not entitled to
obtain a new trial in the third-party action by urging error in the main case, i. e.,
plaintiff v. defendant-third-party plaintiff. Nails contends that the third-party
defendant is bound by the adjudication of the third-party plaintiff's liability to
plaintiff because Nails did not appeal the judgment against it. The contention is
without merit, however. Rule 14, Fed.R.Civ.P., provides that a "third-party
defendant may assert against the plaintiff any defenses which the third-party
plaintiff has to the plaintiff's claim." From this provision, we think it logically
follows that the third-party defendant may assert on appeal errors in the main
case. See 6 C. Wright and A. Miller Federal Practice and Procedure 1463 n.
61 (1971), which cites Tejas Development Co. v. McGough Bros., 167 F.2d
268 (5th Cir. 1948) and states, at p. 334:
The third-party defendant should be able to appeal from a judgment on the
original claim against the third-party plaintiff even if he has not presented a
defense to the original claim since if no liability were established between the
original plaintiff and the defendant then the claim for secondary liability no
longer would exist.
Lawyers for Kay-See participated actively in the trial of the main case through
examination and cross-examination of witnesses, requests to charge in
connection with plaintiff's case against defendant and exceptions to jury
charges. Accordingly, we hold that third-party defendant can assert on appeal
errors in the main case.
The other contention of Nails by Jannee, Inc. is that Kay-See should not be
permitted to appeal because it did not properly designate the judgment appealed
from. Instead of appealing from the judgment against Nails by Jannee, Inc., or
the judgment against Kay-See Dental Manufacturing Co., Kay-See appealed
from the denial of its motion for judgment notwithstanding the verdict or in the
alternative for a new trial. Thus, Nails by Jannee, Inc. argues, Kay-See has
failed to meet the requirements of F.R.A.P. 3(c) concerning the required
contents of a notice of appeal, and its appeal should be dismissed.
The Supreme Court rejected a similar argument in State Farm Mutual Auto
Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956).

There, in a per curiam opinion, it reversed the decision of the 9th Circuit at 225
F.2d 876 (1955) which had dismissed the appeal because appellant, in its notice
of appeal, had designated the trial court's denial of its motion for new trial and
to amend findings, rather than the judgment against it.
In a later case, the Supreme Court reversed the dismissal of an appeal by the
First Circuit Court of Appeals where appellant had not specified in his notice of
appeal that the appeal was from a judgment dismissing the complaint as well as
from the order denying certain motions. Foman v. Davis, 371 U.S. 178, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962). The Court stated, "It is too late in the day and
entirely contrary to the spirit of the Federal Rules of Civil Procedure for
decisions on the merits to be avoided on the basis of such mere technicalities."
Id. at 181, 83 S.Ct. at 230.
Similarly, in this circuit, it is well settled that an appeal is not lost if a mistake
is made in designating the judgment appealed from where it is clear that the
"overriding intent was effectively to appeal." U. S. v. Stromberg, 227 F.2d 903,
904 (5th Cir. 1955). See Comfort Trane Air Conditioning v. Trane Co., 592
F.2d 1373 (5th Cir. 1979).
2

The court charged the jury:

I charge you that where an event is unusual and extraordinary in its nature and
there is nothing to indicate an independent efficient cause for that particular
event, but the peculiar character of the event is sufficient within itself to
indicate that it must have been brought about by negligence on the part of
someone, and where the most reasonable and probable inference that can be
rationally drawn from the happening of that event is that it could not and would
not have taken place had not the company charged with the manufacture of the
instrumentality causing the injury alleged to have followed such an event been
guilty of some particular act or omission as claimed by the Plaintiff and as
constituting the actual cause of some injury, then the Jury, in your judgment
and discretion, would be authorized, but not required, to draw an inference that
the Defendant Nails by Jannee was negligent in causing the injury, if any, and
be responsible for it in damages.

The trial court determines whether there has been presented that minimum level
of evidence to amount to a sufficiency. Once that determination is made, it is,
of course, the function of the jury to determine whether in fact the inference of
negligence is to be made

Georgia has adopted 388 of Restatement of Torts which reads:

Chattel Known to be Dangerous for Intended Use One who supplies directly or

through a third person a chattel for another to use, is subject to liability to those
whom the supplier should expect to use the chattel with the consent of the other
or to be in the vicinity of its probable use, for bodily harm caused by the use of
the chattel in the manner for which and by a person for whose use it is
supplied, if the supplier (a) knows, or from facts known to him should realize,
that the chattel is or is likely to be dangerous for the use for which it is
supplied; (b) and has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition; and (c) fails to exercise
reasonable care to inform them of its dangerous condition or of the facts which
make it likely to be so.
J.C. Lewis Motor Co., Inc. v. Williams, 85 Ga.App. 538, 69 S.E.2d 816 (1952)
Under Georgia law, a manufacturer has a duty to warn of non-obvious
foreseeable dangers from the normal use of his product. Stovall & Co. v. Tate,
124 Ga.App. 605, 184 S.E.2d 834 (1971); Poppell v. Waters, 126 Ga.App. 385,
190 S.E.2d 815 (1972). In Beam v. Omark Industries, Inc., 143 Ga.App. 142,
237 S.E.2d 607 (1977), the Georgia Court of Appeals, citing Everhart v. Rich's,
Inc., 229 Ga. 798, 194 S.E.2d 425 (1972), ruled "(a) manufacturer and retailer
of a product which, to their actual or constructive knowledge, involves danger
to users have a duty to give warning of such danger to the purchaser 'at the time
of sale and delivery.' " 143 Ga.App. at 145, 237 S.E.2d at 610.
5

As in Helene Curtis v. Pruitt, supra, there was no evidence of any miscarriage

in the production of the product and no evidence of contamination of the
product. The product was as it was intended, yet the injury occurred. Thus, any
defect in the product must be termed a design defect. Helene Curtis v. Pruitt,
supra, at 850. There this Court said "(f)or the design to be unreasonably
dangerous, it must be so dangerous that a reasonable man would not sell the
product if he knew the risks involved." At 850

Third-party defendant asserted other errors, including errors relating only to the
third-party action between defendant and third-party defendant. After carefully
considering all of third-party defendant's contentions, we have concluded that
the only error is the inappropriate res ipsa loquitur charge, which is an error in
the main case. Accordingly, we reverse only on the basis of an error in the main
case. Correspondingly, we also hold that there is no error in the third-party
action judgment finding that third-party defendant is liable over to defendant
for such liability as defendant might have to plaintiff. See p. 739, supra, and p.
745, infra

Having thus determined that the judgment of defendant was also appealed, we
have no problem of appellate jurisdiction over that judgment. See Calhoun

County Fla. v. Roberts, 137 F.2d 130 (5th Cir. 1943); Grunin v. International
House of Pancakes, 513 F.2d 114, 126 n.12 (8th Cir. 1975). See also 9 J. Moore
Federal Practice P 204.11(5) (2d Ed. 1975)
8

We find some support by analogy from this Court's decision in Tejas

Development Co. v. McGough Bros., 167 F.2d 268 (5th Cir. 1948). (Plaintiff
sued and obtained a judgment against defendant who brought a third-party
action and obtained a judgment against third-party defendant. Reversal of the
judgment in favor of plaintiff in the main case was held to necessarily also
reverse any judgment over against the third-party defendant). See also Baker v.
Texas & Pacific Railway Co., 326 S.W.2d 639 (Civ.App.1959), discussed at
note 12, infra. Cf. Continental Casualty Co. v. United States, 167 F.2d 107 (9th
Cir. 1948) (Surety's motion for new trial held to toll time for filing appeal for
defendant as well as for surety where judgment of liability was joint and
several, even though defendant did not join in surety's motion for new trial). But
see Murphy v. O'Donnell, 63 A.2d 340 (D.C. 1948); Gibson v. Industrial Bank
of Washington, 36 A.2d 62 (D.C. 1944); Mayo v. American Fire & Casualty
Co., 282 N.C. 346, 192 S.E.2d 828 (1972); Glick v. White Motor Co., 458 F.2d
1287 (3rd Cir. 1972)

In re Barnett, 124 F.2d 1005 (2d Cir. 1942)

10

Maryland Casualty Co. v. City of South Norfolk, 54 F.2d 1032 (4th Cir. 1932)
(The district court held that a surety was not liable under a contractor's bond to
materialmen. On appeal, filed by only some of the materialmen, the court held
that the surety was liable on the bond and that the relief thus granted on appeal
inured to the benefit of all materialmen, including those who had not appealed.)

11

124 F.2d at 1009. In support of this view, the court cited Kline v. Moyer, 325
Pa. 357, 191 A. 43 (1937); Gebhardt v. Village of LaGrange Park, 354 Ill. 234,
188 N.E.2d 372 (1933); Maryland Casualty Co. v. City of South Norfolk, 54
F.2d 1032 (4th Cir. 1932). The court also cited, by comparison, Merchants
Discount Corp. v. Federal Street Corp., 300 Mass. 167, 14 N.E.2d 155 (1938);
Rowell v. Ross, 89 Conn. 201, 93 A. 236 (1915); 5 C.J.S. Appeal & Error
1920, p. 1423; 3 Am.Jur. 695; Shreeder v. Davis, 43 Wash. 129, 86 P. 198
(1906); L.R.A., N.S., 310

12

But Cf. Baker v. Texas & Pacific Railway Co., 326 S.W.2d 639
(Tex.Civ.App.1959). (Plaintiff sued a railroad which impleaded a contractor for
indemnification. Judgment was entered in the trial court for the railroad on the
main claim and for the contractor on the third-party claim. Plaintiff appealed
but the defendant railroad did not. The U. S. Supreme Court found error in the
main claim requiring a new trial. The Texas Court of Civil Appeals remanded

the whole case for retrial, including the third-party claim, even though
defendant had not appealed.)
13

9 J. Moore Federal Practice P 204.11(4), at 941 (2d Ed. 1975)

14

We express no opinion as to whether we would follow the cited cases from the
Second or Fourth Circuits, because those precise facts are not before us

15

Third-party defendant occupies the same adversary position, with respect to the
plaintiff, as does defendant. Thus in this case the issue of the res ipsa loquitur
charge is presented on appeal in the proper adversary context

16

It might be argued that our decision will encourage sloppiness. Defendant was
an aggrieved party and could have appealed. See Bolack v. Underwood, 340
F.2d 816 (10th Cir. 1965). Defendant should have appealed. However, we
believe that the limited scope of our decision will not lull defendants into
inattentive failures to appeal. In most cases, the third-party defendant will be
asserting errors which relate only to the third-party action, and which, if
successfully asserted, would relieve only third-party defendant. We
reemphasize the narrowness of our holding that third-party defendant's appeal
operates also on behalf of defendant only where the judgment against thirdparty defendant is based on third-party defendant's liability which is derivative
of defendant's liability and where the error successfully asserted by third-party
defendant is an error in the main case, thus undermining the finding of
defendant's liability. We express no opinion beyond this narrow holding. A
defendant would be ill-advised to take no appeal, relying on a third-party
defendant to successfully assert such a narrow ground for reversal. It might also
be argued that our decision will undermine the adversary nature of three-party
litigation, by encouraging a lack of adverseness on the part of defendant against
plaintiff. However, the above discussion suggests the considerable peril which
a defendant would risk by failing to take a position adverse to plaintiff. Our
holding, see note 1, supra, that third-party defendant is free to assert errors in
the main case, notwithstanding the absence of an appeal by defendant, is the
significant deterrent to collusion between plaintiff and defendant. Should such
collusion occur, a court has remedies available. See Dewald v. Minster Press
Co., 494 F.2d 795 (6th Cir. 1974) (Trial court granted third-party defendant's
motion for directed verdict against the defendant in the principal action.)

17

We acknowledge that "injustice" of similar scope occurs whenever an errorridden judgment is left unappealed. Injustice alone is not a substitute for a
proper appeal. However, on the facts of this case, and with respect to the
challenge to the res ipsa loquitur charge, we find a proper appeal in the thirdparty defendant's appeal. For this limited purpose, the third-party defendant,

standing in the precise shoes in which defendant also stands, has properly
appealed the issue on which reversal is based